Mendoza v. State

Decision Date16 March 2006
Docket NumberNo. 43390.,43390.
Citation130 P.3d 176
PartiesJuan Manuel MENDOZA, Appellant, v. The STATE of Nevada, Respondent.
CourtNevada Supreme Court

Amesbury & Schutt and David C. Amesbury and John P. Parris, Las Vegas, for Appellant.

George Chanos, Attorney General, Carson City; David J. Roger, District Attorney, and James Tufteland, Chief Deputy District Attorney, Clark County, for Respondent.

Before the Court En Banc.



In this appeal, we clarify the criteria for dual convictions for kidnapping and robbery when such charges arise from a single course of conduct. We also resolve questions concerning custodial statements to authorities under Miranda v. Arizona,1 where the accused has not explicitly stated the intent to waive the right to counsel, and the discretion of the district court in limiting cross-examination in criminal cases.

We conclude that the district court adequately instructed the jury with regard to kidnapping charges for which appellant Juan Mendoza stood trial. In this, we hold that to sustain convictions for both robbery and kidnapping, whether charged in the first or second degree, arising from the same course of conduct, any movement or restraint must substantially increase the risk of danger to the victim over and above that necessarily present in the crime of robbery; or the seizure, restraint, confinement or movement, etc., must substantially exceed that required to commit the robbery. Beyond that, dual culpability may only result if the act of kidnapping stands alone with independent significance from the act of robbery itself.2 In aid of this holding, we provide a sample instruction governing such charges for future use within the Nevada district court system. We also conclude that no Miranda violation occurred during custodial interrogations of Mendoza by the police. Finally, while we conclude that the district court erred in its restriction of Mendoza's cross-examination of one of the State's witnesses, we find that error harmless beyond a reasonable doubt. Accordingly, we affirm the judgment entered below.


The State charged Mendoza with various offenses stemming from robberies committed at the residences of Martha Pedrego and Guillermo Canon: one count of conspiracy to commit burglary; two counts of burglary while in possession of a firearm; five counts of robbery with the use of a deadly weapon; two counts of battery with the use of a deadly weapon resulting in substantial bodily harm; and two counts of first-degree kidnapping with the use of a deadly weapon. At trial, the State introduced Mendoza's confession concerning the two incidents, along with percipient witness testimony. The jury convicted Mendoza on all of the charges in connection with the Pedrego robberies and, as discussed below, all but two of the charges stemming from the Canon robberies.

On appeal, Mendoza challenges his conviction for first-degree kidnapping based upon a claim that the jury instructions describing the elements of robbery and kidnapping arising from the same course of conduct essentially directed verdicts of guilty of kidnapping if the jury believed that he was guilty of robbery. He challenges all of the convictions based upon the district court's rulings admitting his confessions to police and restricting his cross-examination of the police officer who took the confessions.

The kidnapping allegations in this case arose from the alleged robberies at the Canon residence. Also, the admissibility of the confession does not bear on the facts of either incident. Thus, in the discussion that follows, we will recount only the facts pertinent to the Canon charges, the facts surrounding Mendoza's custodial admissions to the police, and the events at trial concerning the district court's restriction of his counsel's cross-examination of the police witness.3


Kidnapping and contemporaneous robberies

Evidence at trial indicated that Mendoza and two cohorts entered Mr. Canon's residence with guns, tied him up, looted the premises and robbed other members of the Canon family. During these robberies, Mr. Avalos, an employee of Mr. Canon, arrived at the residence to retrieve his paycheck. The intruders seized Mr. Avalos, took him inside, severely beat him, and took his keys and wallet. The criminal information filed in the district court included individual charges of robbery with the use of a deadly weapon of Mr. Canon and Mr. Avalos, and individual charges of first-degree kidnapping with the use of a deadly weapon in connection with those robberies. Ultimately, the jury convicted Mendoza of robbery as to both Mr. Canon and Mr. Avalos, and convicted Mendoza of kidnapping Mr. Avalos. It acquitted Mendoza on the kidnapping charges concerning Mr. Canon.4

The district court gave two kidnapping instructions, instructions 24 and 25. Instruction 24 stated as follows:

Every person who willfully seizes, confines, inveigles, entices, decoys, abducts, conceals, kidnaps or carries away any person by any means whatsoever with the intent to hold or detain, or who holds or detains, the person: One, for the purpose of committing robbery upon or from the person; or two, for the purpose of killing the person or inflicting substantial bodily harm upon him; is guilty of kidnapping in the first degree.

The law does not require the person being kidnapped to be carried away for any minimal distance.

The term "inveigle" means to lead astray by trickery or deceitful persuasion.

Instruction 25 went on to state the criteria for dual convictions for robbery and kidnapping arising from the same course of conduct:

In order for you to find the defendant guilty of both first degree kidnapping and an associated offense of robbery, you must also find beyond a reasonable doubt either: One, that the movement of the victim was not incidental to the robbery and that the movement of the victim substantially increased the risk of harm to the victim over and above that necessarily present in the robbery; or, two, that the victim was physically restrained and such restraint increased the risk of harm to the victim or had an independent purpose or significance.

"Physically restrained" includes but is not limited to tying, binding, or taping.

In summary, the district court instructed the jury via instruction 24 that it could convict Mendoza of kidnapping if he detained either Guillermo Canon or Jose Avalos "for the purpose of committing robbery." Instruction 25 imposed an asportation or increased risk of harm requirement to maintain concomitant charges of robbery and kidnapping. Mendoza contends that these two instructions, when read together, suggest that a person who commits a robbery will always be guilty of kidnapping. We disagree. Instruction 24 set forth the statutory definition of kidnapping as a "stand-alone" offense.5 Instruction 25 set forth the parameters under this court's decisions in Wright v. State6 and Hutchins v. State7 for dual convictions for both robbery and first-degree kidnapping arising from a single incident.

In Wright, this court reversed kidnapping convictions imposed by the district court in the context of an armed robbery where the victims were moved from one room to another at the crime scene over a short period of time, and then tied up hand and foot with tape. Wright embraced the California position taken in People v. Daniels.8 In this, we observed the following:

If ... the movement of the victim is incidental to the robbery and does not substantially increase the risk of harm over and above that necessarily present in the crime of robbery itself, it would be unreasonable to believe that the legislature intended a double punishment.... On the other hand, if the movement of the victim results in increased danger over and above that present in the crime of robbery itself, a kidnap[p]ing charge also may lie.9

In reversing the kidnapping convictions, we noted that under the factual scenarios at issue, the movement of the victims during the robbery was "incidental to the robbery and without an increase in danger to them."10 Interestingly, we did not address whether the physical restraint applied to the victims played a role in the analysis, other than to say that, "[i]n these circumstances, the convictions for kidnap[p]ing must be set aside."11

Two subsequent decisions of this court, Clem v. State12 and Hutchins,13 apply the Wright doctrine to cases involving physical restraint. Interestingly, Clem falsely distinguishes itself from Wright on the ground that Clem's victim was physically restrained, and Hutchins does not at all refer to Wright. More particularly, Hutchins states as follows:

"While the plain language of NRS 200.310(1) does not require asportation, the court has required it when the kidnapping is incidental to another offense, such as robbery, where restraint of the victim is inherent with the primary offense." However, if the victim is physically restrained, "this, in itself, establishes kidnapping as an additional offense."14

Although Hutchins appears to expand the rule in Wright to state that physical restraint during the course of a robbery per se proves dual culpability under the Nevada kidnapping and robbery statutes, we went on to further explain that a "kidnapping is not incidental to the underlying offense if `the restraint increased the risk of harm' or `had an independent purpose and significance as [being] essential to the accomplishment of' the other offense."15 Thus, under Hutchins, it remains unclear as to whether restraint must substantially increase the risk of harm to the victim over and above that necessarily present in the crime of robbery to justify dual culpability.

Reading Wright and Hutchins together, an issue of semantics arises over the use of the term "incidental." Wright seems to indicate that incidental action in aid of a robbery only implicates the kidnapping statute when the action increases the risk of harm to...

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